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Sunday, May 11, 2008

Clean Up Your Yard, Lose Your House

Does that headline sound ridiculous to you? It should.

But it pretty well sums up the basis for efforts by Alabama Republicans to unlawfully seize and auction my house.

We noted in a recent post that the judgment against me was for a tort called conversion. A jury found that I unlawfully "converted" property belonging to my neighbor, and that's why there was a judgment against me in the amount of $1,525.

Let's look at the facts, and the law, and see just how absurd this judgment is.

In the first two or three years after my troublesome neighbor moved in next door, I repeatedly found all sorts of stuff in my yard. I found whiffle balls, baseballs, fireworks debris, golf balls (plastic and hard), a soccer ball, a football or two, miscellaneous trash, and paintballs. (Our house had been vandalized with paintballs numerous times.) I saw some of the stuff come from my neighbor's yard. I didn't know for sure where the rest of it came from.

For months, my neighbor, his family members, and guests made repeated trips onto our yard to retrieve stuff--even after they had been told (both verbally and in writing) to stay off our yard. One of the so-called adults, Mike McGarity, even threatened to sue me for telling him to stay off my property. (I'm not making this up, folks. Of course, when I later discovered McGarity's substantial criminal record, that explained a lot of things.)

When McGarity continued to trespass after our repeated warnings, we finally swore out a complaint for criminal trespass third degree. McGarity pled not guilty, and a bench trial was held before Shelby County Circuit Judge Ron Jackson. As I noted in a previous post, McGarity inadvertently confessed to trespassing, and Jackson (according to the trial transcript) found that he trespassed. But in a decision that only a truly corrupt judge can make, Jackson gave McGarity a stern warning but issued an acquittal. That's what allowed McGarity to sue me.

But back to conversion. In making his finding, Jackson stated that if we posted written warning and anyone came on our property, the outcome would be different. Actually, that isn't the law at all. Under Alabama law, a property owner does not have to give warning--written or otherwise--in order to have a prosecution for trespassing. In essence, the burden is on the would-be trespasser to make sure he is licensed, invited, or privileged to enter property. If you think about it, this law makes perfect sense in a country that values private property. If you had to warn everyone to stay off your property, you essentially wouldn't have private property. That's why the burden falls on the would-be trespasser. (By the way, you don't have to be a property owner to assert your property rights. The same laws protect renters also.)

After the criminal trial, because of Jackson's statement about written warning, we decided to post a no-trespassing sign on our property, on the boundary facing McGarity's house. All of a sudden, McGarity, his family members, and guests could not come wily-nily on our yard anymore.

How did this go over? Well, our no-trespassing sign was stolen twice. But we kept putting one back up. And eventually, when stuff kept coming on our yard, McGarity and Co. could not come and get it.

When I would go outside in the evening, or early in the morning before going to work, I would often find something in our yard that shouldn't have been there. (By the way, under the law, it is a civil trespass to kick or throw an object either over, under, or onto someone else's property. Again, our country supposedly takes private-property rights seriously. It's one of the primary concepts that makes us different from the former Soviet Union.)

I had no idea who these objects belonged to. There were probably more than a dozen guests involved in the activity on his property, so I had no way of knowing who owned the stuff that wound up on my yard. And under the law, I had no obligation to go around trying to find the owner. It was up to them to come to me. But they didn't come to me.

I picked the stuff up, put it in a bag in my garage, and figured someone would claim it at some point. But no one ever did.

It wasn't until after McGarity sued me for malicious prosecution that he claimed ownership of these items that had come on my property. After McGarity had sued me, his attorney (the esteemed William E. Swatek) requested that I bring the items in my trusty bag to a discovery conference at my lawyer's office.

My attorney, Michael B. Odom (then of Adams and Reese/Lange Simpson, now of Haskell Slaughter) should have objected to this discovery meeting and refused the request. After all, the lawsuit was for malicious prosecution, and these objects had nothing to do with that. But Odom went along with it. (By the way, Odom wasn't acting alone; his mentor, Jesse P. Evans III, took my case, but Odom did most of the work. Both of them now are at Haskell Slaughter. Their handling of my case was disgraceful, and I will be presenting many more details of how they sold their own client down the river, in order to suck up to a corrupt judge. Why would they suck up to a corrupt judge in Shelby County? Well, Shelby is the fastest growing county in Alabama, and Evans represents a number of developers, folks who build subdivisions, shopping centers, etc. A lot of those developers have major projects in Shelby County, so Evans and Odom have huge financial incentives to kiss the fanny of corrupt local judges. And hey, if a guy like me gets ruined financially along the way, that's just collateral damage.)

During this "object inspection" meeting, Swatek took pictures and even got paintball gunk on himself, while I tried not to laugh.

Maybe Odom didn't object to the meeting because he thought the whole thing was a joke. Well, it's not a joke now. My house is at threat because of that stupid "ball meeting," which my attorney never should have allowed. And by the way, Odom didn't treat it like a joke when it came to billing. He made sure I was billed for his "professional" time.

Swatek took the information from this little meeting and filed an amendment to McGarity's lawsuit, claiming I had "converted" these objects. Odom indicated to me in a letter that he thought the whole thing was absurd. But I'd like to say, "Dude, it's not your house being threatened now is it?"

As I noted in a previous post, Swatek's conversion amendment was filed approximately 65 days late. Odom, correctly, filed a motion to strike. But Judge J. Michael Joiner never ruled on it and allowed the conversion claim to go forward.

At that moment, Odom knew for sure that Joiner was corrupt. But did Odom do anything to protect his client (me)? Nope.

Odom could have filed an interlocutory appeal, asking an appellate court to order Joiner to strike the conversion claim. He could have filed a motion for recusal, demanding that Joiner step down from the case. But Odom did nothing.

And that's a classic example of how a corrupt judge like Joiner can get your own attorney to work against you.

Here I am, almost six years later, still dealing with the results of Odom's negligence.

A few more nuggets to show you how nutty this judgment is:

* The jury in the civil case found that McGarity had indeed trespassed and awarded me $1 in damages. (Even though it cost us $200 to determine that his fence was on our yard and to get it moved.) As I noted earlier, the objects being kicked or thrown onto my property from his property represent a civil trespass, and the jury found it was a trespass. Under a legal doctrine called estoppel, you cannot benefit from your own wrong. In other words, McGarity cannot commit a civil trespass against me and then turn around and benefit when I pick up the object off my property. I raised this issue in a postjudgment motion with Judge G. Dan Reeves, and he never ruled on it.

* McGarity never offered any evidence in the trial that these objects belonged to him. And here is a key point: A fundamental component of conversion is that the alleged converter must use the property for his own beneficial use and enjoyment. McGarity never presented any such evidence. The idea behind conversion is that you want this object and you want to use it. I just picked this stuff up off my yard to keep my property from looking unsightly. I didn't want it and I didn't use it.

* How did the jury come up with a figure of $1,525 against me. McGarity claimed that I had "converted" $25 worth of balls. Most of them, he said, were whiffle balls. There must be hidden gold in those whiffle balls because it takes a lot of whiffle balls to be worth $25. The jury awarded McGarity $25 for the balls and $1,500 in punitive damages. You heard that right: A Shelby County jury awarded 60 times compensatory damages because I picked wayward whiffle balls up off my yard. How nuts is this? First, punitive damages cannot be given at all, except under specific circumstances, which were not present in this case. But even if punitive damages are proper, the usual ratio is no more than 3 to 1, even in cases of heinous conduct. Again, I raised this issue with Reeves in a postjudgment motion, and he never ruled on it.

A whole lot more nutty stuff went on in the trial, and we will get to that later. But this gives you the lowdown on what led to the $1,525 judgment against me--and subsequent threat to seize my house. Like I said, I'm not creative enough to make this stuff up.

So next time you find junk in your yard, and you don't know who it belongs to and no one ever claims it, be careful what you do--you could wind up losing your house because of it.

I know one of the commercial developers Odom and Evans represented at the time was AIG Baker, which developed Lee Branch, and was going to do Hayes Marketplace in Pelham. (Not sure of status on that.) There were some pretty significant legal issues regarding Lee Branch, and that was going on at the time Evans and Odom were selling me down the river. Evans/Odom have and probably still do represent a number of residential developers in Shelby County. I've got that information filed away and will need to look it up.

Would welcome any further insights you might have about developers in Shelby Co. Feel free to post as a comment or blog or you can send me a private e-mail.

Obviously, there is big money to be made in representing developers, and that's where Evans/Odom have their bread buttered. I made a huge mistake ever hiring them.